Advances in Social Science, Education and Humanities Research, volume 442 Riau Annual Meeting on Law and Social Sciences (RAMLAS 2019)

Measuring the Implementation of Prerogative Rights of the President in the Multi-Party System and the Viewpoint of the Presidential Government System in

Zulwisman Zulwisman* Fakultas of Law Universitas Riau Pekanbaru, Indonesia *[email protected]

Abstract—Constitutionally, Indonesia adheres to a [2]. Therefore, the regulation regarding prerogative rights will Presidential Government System that is characterized by a not be found in the legislation. It only depends on the meaning Multi-Party System. In its administration, especially in the of us all ". Or what was conveyed by Jhon J. Wuest and Presidential System which is characterized by a Multi-Party Shepard Leonard Witman who stated "One of the System, the President has the right called the Prerogative. characteristics of a presidential system is that there is no joint Organizing a Presidential Government System with a Multi- responsibility between the chief executive and his cabinet Party System pattern is emphasized in Article 6 A of the 1945 members (ministers). Where ministers are fully responsible to Constitution so that it has implications for the weak realization of the chief executive ". the President's Prerogative Rights. And in the Constitution of the Republic of Indonesia, Keywords: prerogative, presidential system, multi-party namely the 1945 Constitution mandates that in chapter V about the State Ministry Article 17 paragraph (2) states that the I. INTRODUCTION ministers are appointed and dismissed by the President. Therefore, the ministers must be accountable to the President. Constitutionally, Indonesia adheres to a Presidential As with the concept of prerogative rights stated above, the Government System that is characterized by a Multi-Party President does not need to first consult with other state System. In its administration, especially in the Presidential institutions, because this right is a right granted by the System which is characterized by a Multi-Party System, the constitution to the President in carrying out the wheels of President has the right called the "Prerogative". Some opinions government. The President's Prerogative Rights can be grouped say that the term Prerogative does not exist and that there is in four terms, including Executive and Political only the power of the president as head of state. Prerogative Administration, legislative authority, judicial authority and rights are rights owned by a head of government or head of diplomatic authority. state without any intervention from any party in using these rights [1]. Therefore, the prerogative is said to be the privilege However, in its implementation, the president's prerogative or privilege of a head of state in carrying out his state duties. rights were not well organized, the president's freedom in policy making was found to be an intervention from a political However, this Presidential Government system is applied in party and the approval of people with his figure or other multi-party political construction, and the multi-party system is institutions, specifically in terms of the president's prerogative a political context that is difficult to avoid because Indonesia is rights in the election, appointment and dismissal of the a country that has a very high level of plurality and that we Minister in the context of authority executive and political emphasize in the Constitution. However, it is interesting what politics, as well as legislative authority. With the above was conveyed by Mahfud MD who stated "The presence or rationale so as to attract writers to conduct research with the absence of prerogative rights in the constitution does not title "Measuring the Implementation of the President's matter, depending on how to interpret the prerogative rights. Prerogative Rights in the Multi-Party System and Glasses of Because there is a prerogative right if the President has the the Presidential Government System in Indonesia" right to do something without asking for the approval of another person or institution " [1]. Likewise, what was Based on the above background the researcher formulated conveyed by Bagir Manan who stated "That one of the three issues as follows: characteristics of the Prerogative power is not in written law

Copyright © 2020 The Authors. Published by Atlantis Press SARL. This is an open access article distributed under the CC BY-NC 4.0 license -http://creativecommons.org/licenses/by-nc/4.0/. 78 Advances in Social Science, Education and Humanities Research, volume 442

• How is the President's prerogative in regulating • Continuity, harmony, and integration of task Indonesian laws and regulations. implementation; and / or • What are the forms of influence and intervention of • Development of the global environment. political parties in the implementation of the President's prerogative in the administration of the State. In the interest of synchronizing and coordinating the affairs of the Ministry, the President may form a coordinating • Efforts such as what is done to strengthen the Ministry. President's prerogative in organizing the country In matters of legislative authority, it is emphasized in article 5 and article 22 paragraph (1) of the 1945 Constitution which II. METHODS reads as follows: This study tries to examine the problems as mentioned Article 5 above with the approach used is the normative juridical method (legal research). Normative juridical research is a legal research (1) The President has the right to submit a bill to the that puts the law as a building system of norms, the norm House of Representatives. system in question is about the principles, norms, rules of (2) The President establishes Government Regulations to legislation, court decisions and doctrines or teachings. The data implement the Act accordingly. used in this study were obtained from literature with secondary data types. Secondary legal materials include explanations of Article 22 primary legal materials in the form of experts' doctrines found (1) In the case of compulsive matters of concern, the in books, journals, and on websites. President establishes government regulations as the right to substitute for laws. III. RESULTS AND DISCUSSION Regarding the right of prerogative in terms of Judicial A. How are the President's Prerogative Rights Regulated in authority, it is stated in article 14 of the 1945 Constitution Indonesian Laws and Regulations which reads as follows: The President's Prerogative Regulations can be seen in the Article 14 1945 Constitution of the Republic of Indonesia both before and after the Amendment, and these arrangements are further (1) The President grants clemency and rehabilitation by explained in Act Number 39 of 2008 concerning State taking into account the considerations of the Supreme Court. Ministries.

In the 1945 Constitution, the regulation of the President's (2) The President grants amnesty and abolition by taking Prerogative Rights can be grouped in four terms, including into account the considerations of the House of Executive and Political Administration, legislative authority, Representatives. judicial authority and diplomatic authority. In the case of (3) Clemency is the authority of the President to grant executive and political administration stated in article 17 of the forgiveness by eliminating or amending or reducing 1945 Constitution which reads as follows: penalties for someone who has been convicted of a Article 17 crime and has obtained permanent legal force. Clemency does not negate mistakes but forgives (1) The president is assisted by state ministers mistakes and Rehabilitation is a return to the original position or condition as before someone was convicted

(2) The ministers are appointed and dismissed by the or convicted. President (4) Amnesty is the president's authority to negate the

(3) Each minister is in charge of certain affairs in the criminal nature of the actions of a person or group of government people. Those affected by amnesty are never seen to (4) The formation, amendment and dissolution of state have committed a criminal act. Abolition is the ministries is regulated in law. authority of the President to eliminate prosecution. Abolition does not eliminate the criminal nature of an In Act Number 39 of 2008 concerning State Ministries, it is act, but the President with certain considerations stated that the President established the Ministry of Foreign stipulates that no prosecution be carried out for the Affairs, Domestic Affairs and Defense, as referred to in the criminal act 1945 Constitution of the Republic of Indonesia. As well as the President's Prerogative in matters of President in the Establishment of the Ministry referred to diplomatic authority Article 13 of the 1945 Constitution which by considering: reads as follows: • Efficiency and effectiveness; Article 13 • Scope of work and proportionality of the workload; (1) The President appoints Ambassadors and Consuls in terms of appointing ambassadors, the President pays

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attention to the considerations of the House of the implementation of these rights, then there must be formal Representatives. legal steps that must be created in the future, which include revoking the position or membership of the President and Vice (2) The President accepts the placement of the President Elected from the management of Political Parties in ambassadors of other countries by taking into account Indonesia so that the President and the Elected Vice President the considerations of the House of Representatives. is no longer seen as a "party official". And of course this has good implications for strengthening the Presidential B. What are the Forms of Influence and Intervention of Government System in Indonesia, there is room for freedom Political Parties in the Implementation of the President's and independence that is elected by the President and Vice Prerogative in the Administration of the State President elected in compiling his cabinet and giving birth to Organizing a Presidential Government System with a other policies. Multi-Party System pattern is emphasized in Article 6 A of the Arrangement of revocation of position or membership of 1945 Constitution so that it implies a weakness in the the President and Vice President Elected from the management realization of the President's Prerogative Rights, where the of Political Parties is sufficient through amendment of Law article reads “The Presidential and Vice Presidential Candidate Number 2 of 2008 which has been amended by Law Number 2 Pair is nominated by a political party or a combination of of 2011 concerning amendments to Law Number 2 of 2008 political parties participating in the general election prior to the concerning Political Parties and technically through AD / ART election implementation. general". The President and Vice Political Parties. President elected get "Intervention" in organizing prerogative rights in the field of executive affairs, in terms of the implementation of article 17 paragraph (2) of the 1945 IV. CONCLUSIONS Constitution. Almost all the general chairmen of the Political From the framework of background thought and discussion Parties Carrying (the Coalition Party) have held closed and in-depth analysis found several conclusions including: meetings and discussion very deeply with the President and Vice President elected and submitted a list of names to the • Arrangement of prerogative rights in legislation in President and Vice President elected to be appointed ministers. Indonesia found in the Constitution, namely in the 1945 This is in line with what was conveyed by Ubeidillah as a Constitution of the Republic of Indonesia and in its Political Observer from Jakarta State University (UNJ) who derivatives in the form of Law Number 39 of 2008 stated "(Jokowi is held hostage by Mega) yes, Mr. Jokowi concerning State Ministries. cannot ignore Mrs. Megawati (in the election of the cabinet of • Implementation of the President's Prerogative Rights in ministers)" (CNN Indonesia). the Multi-Party System and the Glasses of the This was further strengthened by Megawati's speech as Presidential Government System in Indonesia appear to Party Chairperson stating "when I made Pak Jokowi (as be weak, because it is indeed incompatible with the president), someone like me did not want to know who it was combination of the Presidential Government System by Jokowi. (they) forgot I have the signature of Pak Jokowi (if) with the Multi-Party System. he is a party official. • legally formal that must be created in the future, In the previous period, the existence of Puan as the including revoking the position or membership of the Coordinating Minister for Human Development and Culture President and Vice President Elected from the (PMK) in the Working Cabinet of Indonesia from 2014 to management of Political Parties in Indonesia so that the 2019, Puan became the only minister who was not affected by President and Vice President Elected are no longer seen the Reshuffle or change of work cabinet before the Jokowi as "party officials". So that the President's prerogative administration year in August. 2015, whereas at that time a rights in Indonesia are getting stronger and reinforcing number of coordinating ministers were replaced (Coordinating the Presidential Government system. Minister for the Economy, Coordinating Minister for Maritime and Coordinating Minister for Politics and Security). as the ranking minister is always under the board REFERENCES under the minister's performance table in the results of the release of several survey institutions. So it appears that there is a "political space" that President Jokowi is unable to penetrate [1] M.D. Mahfud, Hukum dan Pilar-Pilar Demokrasi. Yogyakarta: Gama Media, 1999. in the implementation of his prerogative rights as enshrined in [2] B. Manan, "UUD1945 Tak Mengenal Hak Prerogatif," Harian Article 17 paragraph (2) of the 1945 Constitution. Republika. Yogyakarta: Pusat Studi Hukum Fakultas Hukum Ull, 2000.

C. Efforts such as What is Done to Strengthen the President's Prerogative in Organizing the Country Departing from the prerogative arrangement of constitutional rights and forms of political party intervention in

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